United States v. Arlen
| Decision Date | 24 February 1958 |
| Docket Number | Docket 24751.,No. 198,198 |
| Citation | 252 F.2d 491 |
| Parties | UNITED STATES of America, Appellee, v. George V. ARLEN, Appellant, |
| Court | U.S. Court of Appeals — Second Circuit |
John C. Broughton, Asst. U. S. Atty., Western District of New York, Buffalo, N. Y. (John O. Henderson, U. S. Atty., Western District of New York, Buffalo, N. Y. on the brief), for appellee.
David E. Pitcher, Jr., New York City (Harold H. Corbin and Corbin, Bennett & Delehanty, New York City, on the brief), for appellant.
Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
The sole question on appeal is whether appellant, George V. Arlen, was deprived of his rights under the Sixth Amendment by being required to stand trial without counsel. A jury convicted him on eleven counts of mail fraud, 18 U.S.C.A. § 1341, and for conspiracy, 18 U.S.C.A. § 371, for which he was sentenced to five years imprisonment on each count, to be served concurrently. Since the record reasonably indicates that Arlen was able to retain his own counsel and failed to do so although more than four months elapsed from indictment to trial, we feel that Judge Burke properly treated his conduct as a waiver of his right to be represented by counsel and we find no deprivation of Arlen's constitutional rights.
Arlen and four others were indicted in the Western District of New York on March 13, 1956 on one count of conspiracy and seventeen counts of mail fraud, all arising out of an alleged confidence scheme whereby they defrauded Augustine J. Cunningham of several hundred thousand dollars. Defendant Leo Hampton pleaded guilty and the government was granted a severance of trial against "Packy" Lennon and Aldus Turner. Arlen was tried only with the defendant Harold Odom, who was found guilty on four counts. Odom filed notice of appeal but has submitted no briefs and did not join in this appeal.
Arlen was arraigned on March 26, 1956 and entered a plea of not guilty. Previously, on December 30, 1955, he had filed an appearance bond in the sum of $20,000, and he remained at large on this bond until the jury's verdict on July 23, 1956. On May 8, despite the efforts of the defendants to adjourn the trial until the next term, Judge Burke set the case for June 25, the last available date in the term. Apparently the judge was cognizant of the fact that Cunningham, the principal government witness, was then 77 years old. Cunningham has since died.
Unsuccessful in his initial efforts to have the case adjourned, Arlen wrote Judge Burke on June 13 requesting a continuance, stating that his attorney of record, William B. Mahoney, of Buffalo, had withdrawn "several days ago" because of Arlen's "inability to pay the balance of the fee," that trial at that time would have a detrimental effect on his wife's health, and that he needed time to raise funds to avail himself of "the services of a very able attorney." In this letter Arlen acknowledged that he might be able to obtain a court appointed attorney but emphasized that it was "most imperative I secure the services of counsel of profound ability who will take a personal interest in my case."
Judge Burke, before denying the continuance, first talked with William B. Mahoney and learned that the attorney had told Arlen three weeks before, in May, that he would withdraw unless the balance of the fee was paid. (Arlen later twice stated to the jury that he had paid $2,000 to Mahoney.) In his letter of June 15 replying to Arlen, Judge Burke expressly referred to the possibility of court assigned counsel, stating "I have no facts before me which would indicate that you are an indigent person so that you would require the services of a court appointed counsel because of your financial inability to pay."
Apparently Arlen did not again communicate with the court until June 24, when he informed Judge Burke that he had entered St. Joseph's Hospital, Yonkers, New York, on that day. The judge then adjourned the trial until July 16. On July 14 a Dr. Frank A. McCarthy of Yonkers wrote the judge that he had treated Arlen from June 23 until June 28, when Arlen was discharged from the hospital, and that another doctor, Robert D. Tarpey, had seen Arlen in consultation and was of the opinion that he was suffering from a coronary insufficiency which made a postponement of a court appearance until mid-September or early October advisable. Meanwhile, apparently at the instance of the government, the Public Health Service examined Arlen on July 12 and found no incapacitating pathological state or condition of disturbed physiology. The letter of its Medical Director, John L. Wilson (Court's Exhibit 5), advised the government that Arlen was "physically able to withstand trial." Arlen himself later admitted that a cardiogram had shown nothing.
On the morning of July 16 Arlen requested an adjournment until later in the day for the purpose of consulting a lawyer. He said he had called a Mr. Donovan that morning. His motion was denied after a colloquy between Arlen and the judge. Arlen insisted that he had not had ample time to obtain counsel because he was in the hospital and that he had made every effort to get an attorney but that none wished to become involved in the case because of its being tried during the summer. Judge Burke pointed out that the case had been set six weeks in advance, that William B. Mahoney had withdrawn three weeks before Arlen informed the court of the fact, and that he had been in the hospital for only a few days.
Further, indicating that he had personally inquired into the extent to which Arlen had attempted to obtain representation, Judge Burke rejected the contention that the summer trial had resulted in an inability to get counsel by stating
Neither here nor elsewhere in the argument on the application for adjournment did Arlen take exception to this characterization of his attempts to obtain counsel nor did he state that he was financially destitute and desired court appointed counsel. Indeed, the court again stated In reply Arlen merely insisted "I would like to get my own lawyer."
The trial started on July 16 with the selection of the jury. During the questioning of veniremen, Arlen returned to the same theme and stated In reply Judge Burke reminded Arlen "You did not tell this Court you are indigent and not able to hire a lawyer." Arlen said "I told the Court in court I did not have money to retain counsel." Again the Court reminded him "You never have asked me to assign counsel up to now," and Arlen replied "No, sir." When Judge Burke said to Arlen "In my correspondence, I told you that there had been no circumstances brought to my attention which indicated that you were an indigent person, and the Court could and should appoint a lawyer" he answered (Emphasis supplied.)
After the jury was selected in the morning, the trial was adjourned to the following day. Thus Arlen actually did have most of July 16 in which to consult a lawyer but he made no further statements regarding Mr. Donovan or any other attorney.
On July 17, in his opening statement to the jury, Arlen reiterated all the reasons that he had given in his efforts to obtain continuances — that he had no attorney, that his wife was sick, that he had paid an attorney $2,000, that he had been in the hospital, that he did not have ample time to obtain counsel, that he consulted several attorneys who did not wish to take the case because of the summer and the short time before trial. He made no mention of a coronary insufficiency as the reason for his hospitalization, but for the first time referred to a "hurt back." Financial inability to retain counsel was not in his catalogue of troubles.
The mandate of the Sixth Amendment that "in all criminal prosecutions, the accused shall enjoy the right * * * to have the...
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